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Is the discovery of a previously unappreciated principle of a prior art composition patentable?

12/29/2017

 
Not if that principle was already inherent within the prior art composition.  According to the MPEP 2112:

"[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best,562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977)."


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